United States v. Clifton Yazzie ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10289
Plaintiff-Appellee, D.C. No. 2:16-cr-01285-GMS
v.
MEMORANDUM*
CLIFTON YAZZIE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief Judge, Presiding
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
Clifton Yazzie appeals from the district court’s judgment and challenges the
ten-year term of supervised release and two special conditions imposed following
his guilty-plea conviction for failure to register as a convicted sex offender in
violation of 18 U.S.C. § 2250(a). We have jurisdiction under 28 U.S.C. § 1291,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and we affirm.
As an initial matter, the government argues that Yazzie waived all of his
arguments on appeal. We are not persuaded that Yazzie’s request for a 10-year
supervised release term and shorter custodial sentence, or his agreement to certain
modifications to the challenged conditions, constitutes waiver. See United States
v. Gallegos-Galindo, 704 F.3d 1269, 1272 (9th Cir. 2013) (no waiver absent
evidence that defendant failed to object for tactical reasons). However, because
Yazzie did not object in the district court to the supervised release term, or to the
two challenged conditions, we review for plain error. See id.
Yazzie first contends that the district court procedurally erred by failing to
adequately explain why it imposed a term of supervised release double that of the
Guidelines’ recommendation. The presentence report, which the district court
adopted, stated that the Guidelines range was five years, but recommended an
upward variance to ten years to allow probation “to monitor the defendant in the
community and provide him with necessary services to reduce his risk to the
community.” The court’s statements at sentencing regarding Yazzie’s refusal to
obtain treatment and the danger he poses to the public make clear that it was
persuaded by probation’s recommendation. The court did not plainly err in failing
to provide a lengthier explanation. See United States v. Carty, 520 F.3d 984, 992
(9th Cir. 2008) (en banc) (adequate explanation can be inferred from the record).
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Yazzie next challenges special condition eight, which restricts Yazzie from
possessing material depicting sexually explicit conduct that involves “explicitly
sexually stimulating depictions of sexual conduct that are deemed inappropriate by
[his] probation officer,” and prohibits him from patronizing any place where such
materials are available or entering any location where the “primary function” is to
provide these materials. Contrary to Yazzie’s argument, this condition is neither
vague nor overbroad. See United States v. Gnirke, 775 F.3d 1155, 1166 (9th Cir.
2015). Moreover, the condition is substantively reasonable in light of Yazzie’s
underlying offense and failure to complete sex offender treatment. See 18 U.S.C.
§ 3583(d); United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012).
Finally, Yazzie challenges special condition nine, which prohibits Yazzie
from directly or indirectly contacting the victim or victim’s family of his
underlying sexual offense without prior written permission from his probation
officer. Yazzie argues that, because his grandmother is a member of the victim’s
family, this condition unduly impinges upon his right to familial association.
Contrary to Yazzie’s argument, the district court stated enough to justify this
condition, even assuming that it affects a significant liberty interest. See Wolf
Child, 699 F.3d at 1090. Moreover, the condition is not impermissibly vague or
overbroad, nor is it substantively unreasonable. See id.
AFFIRMED.
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